FEDERAL COURT OF AUSTRALIA

Zentai v Republic of Hungary [2009] FCA 511

EXTRADITION - application for bail pending appeal to Full Court - whether there exist special circumstances under s 21(6) of the Extradition Act 1988 (Cth) - relevance of requesting country consenting to grant of bail - bail granted.

CHARLES ZENTAI v REPUBLIC OF HUNGARY

WAD 47 of 2009

GILMOUR J

12 MAY 2009

PERTH

THE COURT ORDERS THAT:

1.         Charles Zentai (“the Appellant”) after complying with the conditions set out in Schedule 1 to this Order, be released on bail with a duty to surrender to the Federal Court of Australia upon the order of the Federal Court of Australia on a date and time to be notified to the Appellant by an officer of the Federal Court of Australia.

2.         The Appellant’s passport, currently in the possession of the Magistrates Court of Western Australia, be transferred to the custody of the Australian Federal Police.

Schedule 1

Pursuant to s 21(6)(f)(iv) of the Extradition Act 1988, the Appellant be released on bail on the following terms and conditions:

a.       $50,000.00 personal undertaking;

b.      $75,000.00 surety;

c.       Surrender all passports and not apply for any passports;

d.      Not to approach within 100 metres of any point of the domestic or international departure and not to leave Australia; and

e.       Reside at 2/10 Millar Place, Willetton, WA.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     I delivered ex tempore reasons in this matter on 12 May 2009.  The following is the substance of those reasons with minor editing.

2                     This is the return of a notice of motion in which the appellant, Mr Zentai, seeks to be admitted to bail, pending his appeal from my judgment dismissing his application for review of the decision of Barbara Lane SM by which he was determined eligible for surrender: Zentai v Republic of Hungary [2009] FCA 284.  The position has changed since the matter was last before this Court in that the Republic of Hungary not only no longer opposes his admission to bail, but positively consents to it and indeed, a proposed minute of consent orders was lodged with this Court dated 11 May 2009 and signed by the solicitors for the appellant and the first respondent, setting out the terms of bail and the conditions for such bail.  I declined to act in relation to the minute because it should not be thought that bail is a matter for mere consent of the parties.

3                     It is pursuant to s 21(6) of the Extradition Act (1988) (Cth) a matter for the Court to be satisfied that there exist special circumstances before an appellant such as Mr Zentai is given the benefit of bail.  The notice of motion is supported by an affidavit of Mr Denis Barich, solicitor, sworn on 6 March 2009 and also by Mr Zentai, sworn on 8 May 2009.  The general background to Mr Zentai’s case is set out at some length by McKerracher J in Zentai v Republic of Hungary [2008] FCA 1335 and for ease this morning, I would adopt that in these reasons. 

4                     In my opinion, the circumstances which confront Mr Zentai are different from those facing persons ordinarily in custody awaiting extradition.

5                     First, in my view, taken in combination with other matters, Mr Zentai’s age and his ongoing severe health difficulties, set him apart from the ordinary case, although on the material before me there is no clear evidence that his health difficulties could not be managed within the prison system, assisted by a proximate tertiary hospital.  Next, and this goes to the question of special circumstances, Mr Zentai’s case involves legal questions of considerable complexity.  Certainly there are important issues on which minds could differ and those matters ought to be resolved by a Full Court of this court in due course.  I am satisfied, as I was previously, that there is no sensible risk of flight.

6                     Despite these considerations, this is a case where, but for one additional factor, any decision to admit Mr Zentai to bail would hang in the balance.  It is this: in the United Mexican States v Cabal (2001) 209 CLR 165 at para 58, the Court said this:

If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law.  If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty.  A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country’s ability to enforce its own laws.

7                     That consideration and matters associated with it weighed heavily in the reasons of the High Court in allowing the appeal against the orders of Kirby J admitting Mr Cabal to bail.  It should be remembered that in Cabal, the United Mexican States opposed his application for bail.  That serious and important consideration does not arise in this case, because as I have already said, the Republic of Hungary actually consents to the admission of Mr Zentai to bail on certain conditions.  Accordingly, the foreshadowed breakdown in Australia’s bilateral treaty with Republic of Hungary is not in prospect and because of that important difference and for the reasons that I have mentioned, I am accordingly prepared to admit Mr Zentai to bail and I do so in terms of the orders proposed by the parties in the minute which was lodged with the Court on 11 May 2009. 

Associate:

Dated:         20 May 2009